Te whetu Orongo

The truth is still the truth, even if no one believes it. A lie is still a lie, even if everyone believes it. Lies have speed; truth has endurance.

– Edgar J. Mohn, American essayist

The Malaysia Agreement (MA63) has been anchored in self-imposed constitutional quicksand feigning a social compact, an international treaty, an agreement, and a binding contract for and between five sovereigns — the UK, Malaya, Singapore, Sabah and Sarawak. The four remaining sovereigns are unable to drain the swamp.

The UK is especially quiet being the progenitor of the new federation (Malaysia) which wrought the Cobbold Commission and birthed the subsequent Inter-Governmental Committee Report. It’s mystifying whether or not formal concerns and complaints were tabled in the House of Commons, or even to Buckingham Palace, and the United Nations to expose and fix the breaches.

Article VIII of MA63 has become a veritable thorn in the flesh of the Borneo Territories for the last 57 years with promises by Putrajaya to right the wrongs. The UK meanwhile plays the “don’t trouble trouble until trouble troubles you” routine.

MA63 must necessarily be handcuffed to the rule of law, equity, constitutional conscience and consciousness. Eviscerating words, phrases, intent, content, extent, purpose and objective of suspect laws or treaties salivated with expectations in a court of law should not substitute for inept judicial scrutiny, mindless reasons, lame excuses and unintelligent explanations.

The seeking of legislative intent is most amusing when a court of law decides, and attempts, to read legislators’ minds. I would have thought the seeking of legislative purpose based on the words and phrases employed would be the only safe and sure way to decode or decipher some ambiguous piece of legislation.

The inordinate delays encountered in ignoring MA63 that go unaddressed and unanswered seems to suggest that some sinister and secretive Faustian bargain was struck under the pretext of freedom and liberty in a new federation controlled by the inevitable hand of federalism.

It is not choking creativity for MA63 to be reviewed, refreshed and repaired through native law and custom initiatives since Article 160 FC accepts it as pre-existing law, while Article 145(3) FC grants ousting power of the jurisdiction of the federal Attorney General. Native courts certainly qualify to take the bull by its horns to play a pivotal and proactive role in mending the breaches.

MA63 was, admittedly, conceived under the doctrine of jus cogens — the principles which form the norms of international law that cannot be set aside.

Therefore, those of us who care must question the authority that is causing this wanton delay in setting this wayward ship back on course.

The Enforcement of Article VIII MA63 Act, if promulgated by the legislatures of Sabah and Sarawak, would be a significant precipitation of urgency, normalcy and decency. After all, the validity of proceedings of a legislative assembly enjoy litigation immunity — Article 72(1) FC — unless some unexorcised resurrected constitutional ghost offers a new aberration.

The pivotal Article VIII of MA63 has no ambiguity, and thus the Federal Constitution has no power of ambush: “The Governments of the Federation of Malaya, North Borneo and Sarawak will take such legislative, executive or other action as may be required to implement the assurances, undertakings and recommendations contained in Chapter 3 of, and Annexes A and B to, the Report of the Inter-Governmental Committee signed on 27th February, 1963, in so far as they are not implemented by express provision of the Constitution of Malaysia.”

The Canadian academic and activist, David Suzuki hit the bulls-eye when he observed that “treaties, agreements and organisations to help settle disputes may be necessary, but they often favour the interests of business over citizens.” The proof and evidence of the supremacy and primacy of business interests is legion. Citizens are, inevitably, collateral damage.

MA63 should not be allowed to become more fragile and brittle, frayed and belittled, forgotten, and terrifying as a Faustian bargain. There is a growing corpus of proof and evidence that the rule of law is an occasional hint of the jurisprudence of doubt. Singapore and Brunei certainly read the tea leaves correctly.

As equal partners to the pact, the Borneo Territories need not wait hat in hand for instructions, corrections and directions despite the legerdemain of Article 1(2) FC which made them “States” while inflicting a constitutional slap to Article VIII MA63.

Sabah and Sarawak already have all the necessary answers, remedies and solutions without encountering constitutional malfeasance and misfeasance.

The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.